Lawyers, Guns and Money X

As expected, the Supreme Court ruled yesterday that: (1) the Second Amendment to the U.S. Constitution protects an individual right to keep and bear firearms, a right unrelated to militia service, and to use firearms for traditionally lawful activities including self-defense; and (2) District of Columbia handgun legislation, which effectively bans handguns by prohibiting the carrying of an unregistered firearm while prohibiting registration of handguns, violates the Second Amendment. The vote was 5-4, with Scalia, Roberts, Kennedy, Thomas and Alito in the majority.

The Court rightly poo-pooed the notion that the Second Amendment is limited in scope to weapons of the sort existing when the Constitution was ratified. However, it appeared to limit its holding to “bearable” (carryable) arms, which presumably means that there’s no constitutional right to keep and bear a Cold War surplus Typhoon class nuclear missile sub or an A-10 Warthog strike aircraft.

The decision leaves a number of important questions unanswered. First, is the right at issue sufficiently fundamental to be binding on state and local governments by operation of the Due Process Clause of the Fourteenth Amendment? The Court didn’t need to decide that issue here, but the nearly reverential language Justice Scalia used strongly suggests an affirmative answer.

Second, what level of judicial scrutiny applies to firearms regulations? The Court notes that the “the right secured by the Second Amendment is not unlimited.” The Court disclaimed any intent to “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” That, however, leaves the scrutiny question open. If the right at issue is “fundamental,” strict scrutiny presumptively applies and a firearm regulation will fail unless the government proves that the regulation is necessary to advance a compelling state interest. It’s pretty easy to construct a hypothetical under which a state law banning felons from possessing guns would fail that test on an as-applied basis.

The dissenters (Stevens, Souter, Ginsburg and Breyer) divvied up the work. Justice Stevens asserts that the Second Amendment “protects the right to keep and bear arms for certain military purposes, but . . . it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons”, including self-defense purposes. (The mountain of vitriol that Scalia heaps on Stevens is perhaps the best indication of the strength of Stevens’ dissent.) Justice Breyer argues that, even if the majority’s view of the amendment’s scope is correct, the D.C. laws at issue are constitutional because they’re consistent with firearms restrictions in effect at the time of the nation’s founding.

We can now expect a shitstorm of new Second Amendment litigation, a shitstorm that Heller rendered inevitable.

Boumediene reflected the public’s increasing disgust with the Bush Administration’s detention policies. In Heller, the Court changed existing law dramatically to adopt a new interpretation of the Second Amendment that is actually fairly close to the center of public opinion. It struck down one of the most restrictive gun control laws in the country and it recognized Americans’ right to use handguns to defend their home.

Despite its long and occasionally dreary originalist exegesis, the Heller majority is not really defending the values of 1791. It is enforcing the values of 2008. This is no accident. Indeed, the result in Heller would have been impossible without the success of the conservative movement and the work of the NRA and other social movement actors who, over a period of about 35 years, succeeded in changing Americans’ minds about the meaning of the Second Amendment, and made what were previously off-the-wall arguments about the Constitution socially and politically respectable to political elites. This is living constitutionalism in action.

Like Lawrence v. Texas, Heller is another example of how the Supreme Court exercises judicial review in response to successful social and political mobilizations, regardless of what individual Justices understand themselves to be doing. The only difference is that in Heller, it is conservatives who have successfully changed public opinion, a change that has now become reflected in Supreme Court opinions.

Welcome to the living Constitution, Justice Scalia. We couldn’t have done it without you.

The notion that there’s anything “originalist” about Heller is indeed more that a little preposterous.